A Thunderbolt from the Supreme Court

Chief Justice Thakur should rightly be proud of his brothers who, despite attacks on “judicial activism”, are safeguarding this republic from the dangers of becoming a police state. EDITOR-IN-CHIEF INDERJIT BADHWAR highlights a recent judgment which should resound in all countries that profess their faith in the Rule of Law.

A recent Supreme Court judgment penned by Justice Dipak Misra sharing the bench with Justice Shiva Kirti Singh has ripped into the police’s callous disrespect for individual liberty. Amongst the most precious rights gifted to us by the founding fathers of the Indian constitution who gifted us our democratic republic is the freedom to enjoy personal autonomy and independence. They tried to fetter the powers of arrest by the state to protect citizens against tyranny and official harassment in the exercise of their rights and duties. Colonial despotism—the Rule of the Imperial Crown—was supposed to have been replaced by the Rule of Indian Law. The government, as the adage goes, should always be bound and shackled by the chains of the constitution.

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Alas, the more you read about law enforcement in the Indian Union, the more you weep as you see the law of the land defiantly snubbed by the very forces sworn to uphold it. Undertrials, most of them illiterate, poor, the wretched of the earth, as Franz Fannon called them, belonging to the underclass, languish in jail for years without trial or access to the courts. Thousands of innocents wait on death row without access to lawyers or appeals. (Don’t take my word for this. Please refer to the horror story documented by the National Law University, Delhi). What good is the law if the system victimizes and denies jurisprudence to those most in need of its majesty? As Fannon put it: “Each generation must discover its mission, fulfill it or betray it, in relative opacity.”

As Indian judges grapple with the enormity of injustice—often beyond their control—they sometimes break down and weep openly as did Chief Justice TS Thakur at a recent function in the presence of Prime Minister Modi. But they also choose their battlegrounds and fight the system as best as they can, as reflected in the judgment which is the subject of this article.

India, sadly, has never figured very highly in international evaluations by human rights groups. The country ranks poorly in the area of custodial deaths, extra-judicial killings, torture, judicial backlogs, prison reforms and the rights of undertrials. One important facet of this list of infamy is the police’s routine violation of the rights of the accused—arbitrary arrests and harassment of people often without magisterial sanction—even in bailable, non-cognizable offences.

International human rights organizations must certainly take note of these unforgivable transgressions of the state but simultaneously, they must also applaud the Indian judiciary when it acts—as it has often done in what is admittedly a Sisyphean task—to excoriate and restrain these malpractices.

I offer a personal salute to Justices Misra and Singh for roaring like protective lions in the portals of the halls of justice and awarding two women Rs. 5 lakh each as compensation for humiliating and insensitive behavior by the police. In this landmak case, DR RINI JOHAR & ANR V STATE OF MP & ORS, the apex court rebuked the cyber cell of the Bhopal police department for “seriously jeopardizing” the dignity of the two women, one a doctor, the other a practicing advocate.

According to a summary of the case published in Manupatra, the two petitioners filing the writ in the Supreme Court had become embroiled in allegedly fraudulent transactions, which were investigated by the cyber cell in Bhopal. The cyber police arrested the petitioners from their residence in Pune and transported them to Bhopal in a cold-blooded manner, without first having produced them before the local magistrate. They were released on bail after more two weeks in custody. (Thank the Lord for small mercies)

The Court noted that the police had several options under the Information Act 2000, each less drastic than aggressively arresting the women; instead, it “experimented” with the liberty of the petitioners. Moreover, police conduct was especially egregious in light of the civil nature of the dispute.

The cyber police became involved because some of the transactions—purchase of imaging equipment by one of the original complainants for about Rs. 2,55,000—was conducted on email. Both the petitioners are women—one a doctor pursuing higher studies in the US, who also runs an NGO to provide services for South Asian abused women in the US; the other, a septuagenarian practicing in the district court at Pune for the last 36 years.

The purchaser later filed a complaint of fraud on the basis of which the cyber police headquarters in Bhopal (Orwell must be turning in his grave) made out an FIR under Section 420 and 34 of the Indian Penal Code (IPC) and Section 66-D of the Information Technology Act, 2000. Deepak Thakur, the Deputy SP of the state cyber police, Bhopal, passed the following order: “Cyber state police having registered FIR 24/2012 under S 420, Indian Penal Code and S 66 D of IT Act, accused Rini Johar and Gulshan Johar should be arrested and for that lady constable Ishrat Khan has been deputed with case diary with address from where they are to be found and arrested and it is ordered that they be brought to Bhopal. In reference to which you have been given possession of the said case diary.”

The orders were reproduced in the Supreme Court judgment on the writ “in entirety as the same has immense relevance to the relief sought for by the petitioners”. (On 27.11.2012, the petitioners were arrested from their residence at Pune.)

Why? Because the Supreme Court judgment recorded: “Various assertions have been made as regards the legality of the arrest which cover the spectrum of non-presence of the witnesses at the time of arrest of the petitioners, non-mentioning of date, and arrest by unauthorized officers, etc. It is also asserted after they were arrested, they were taken from Pune to Bhopal in an unreserved railway compartment marked—‘viklang’ (handicapped). Despite request, the petitioner no. 2, an old lady, was not taken to a doctor, and was compelled to lie on the cold floor of the train compartment without any food and water. Indignified treatment and the humiliation faced by the petitioners have been mentioned in great detail. On 28.11.2012, they were produced before the learned magistrate at Bhopal and the petitioner no. 2 was enlarged on bail after being in custody for about 17 days and the petitioner no.1 was released after more than three weeks. There is allegation that they were forced to pay Rs. 5 lakh to respondent no.3, Deepak Thakur, Dy. S.P. Cyber Cell, Bhopal. On 18.12.2012, chargesheet was filed and thereafter a petition under Section 482 CrPC has been filed before the High Court for quashment of the FIR. At this stage, it is pertinent to state that on 19.2.2015 the petitioners filed an application for discharge and the learned magistrate passed an order discharging the petitioners in respect of the offence punishable under Section 66-D of the Act. However, learned magistrate has opined that there is prima facie case for the offence punishable under Section 66-A(b) of the Act read with Section 420 and 34 of the IPC.”

Without delving too deeply into the merits of the details, the Supreme Court observed that ordinarily, it would have asked the petitioners to pursue their remedy before the high court. What the judges found perturbing was that the petitioners “agonizingly submitted that this Court should look into the manner in which they have been arrested, how the norms fixed by this Court have been flagrantly violated and how their dignity has been sullied permitting the atrocities to reign. It was urged that if this Court is prima facie satisfied that violations are absolutely impermissible in law, they would be entitled to compensation. That apart, it was contended that no case is made out against them and the order of discharge is wholly unsustainable.”

The Supreme Court appointed Sunil Fernandes as amicus curiae to assist in the case. During official inquiries conducted into allegations of money having been paid to the Deputy SP, the lady constable Ishrat Praveen Khan stated: “When I received the order, I requested DSP Shri Deepak Thakur that I was not in the District Police Force. I do not have any knowledge about IPC/CrPC/Police Regulation/Police Act and Evidence Act, IT Act as I have not obtained any training in Police Training School, nor do I have any knowledge in this regard, nor do I have any knowledge to fill up the seizure memo and arrest memo… Even after the request, DSP Shri Deepak Thakur asked in strict word that I must follow the order. The duty certificate was granted to me on 26.11.2012, on which Report No.567 time 16.30 was registered, in which there are clear directions. In compliance with this order, we reached Kondwa Police Station in Pune Maharashtra on 27.11.2012 with my team and two constables and one woman constable were sent to assist us from there. The persons of the police station Kondwa came to know reaching Lulla Nagar that the said area does not fall under their police station area so the police of Kondwa phoning Banwari Police Station got to bring the force for help Banwari Police Station. I had given the written application in PS Banwari. The entire team reached the house of Rini Johar and one laptop of Dell Company and one data card of Reliance Company were seized. Rini Johar called her mother Gulshan Johar from the Court furnishing information to her about her custody. Thereafter, Smt Rini Johar had called up the Inspector General of Police, State Cyber Police Shri Anil Kumar Gupta. I and my team had taken Smt Rini Johar and Smt Gulshan in our custody. I and Constable Miss Hemlata Jharbare conduced robe search of Smt Rini Johar and Smt Gulshan Johar. Nothing was found on their body.”

In summary, the disputed allegation made against Ms Rini Johar relates to the non-delivery of goods after payment has been received—a case related to the alleged cheating between two persons in respect of sale and purchase of goods. The maximum sentence in Section 420 is a period up to 7 years and similarly, when the reasons mentioned in Section 41 (1)(B) are not found, the suspects of the crime should be made to appear for interrogation in the investigation issuing notice to them.

The late Justice Krishna Iyer has held in Jolly George Varghese v Bank of Cochin that “no one shall be imprisoned merely on the ground of inability to fulfill a contractual obligation”. The current judgment avers that Section 41(2) of CrPC grants power to the investigator to make an arrest if the suspect does not appear for the investigation despite the notice. But no reason for the arrest had been mentioned in the case diary. No notice had been sent to the elderly Gulshan Johar (then aged about 70 years), nor had she played any role in committing any offence. Only a draft of Rs 2.50 lakh had been deposited in her account. “No binding ground has been mentioned in respect of her arrest in the case diary.” And again: “It has not been mentioned anywhere in the arrest memo and case diary that the information of the arrest of both women was furnished to any of their relatives and friends. It has become clear from the statements that when both the women were arrested physically, they were brought to PS Banwari Pune, where the arrest memo was prepared.”

Citing a plethora of blatant violations in the treatment of the two accused women, the Supreme Court judges cited portions of the report filed by Fernandes, the amicus curiae. “In Joginder Kumar v State of UP, while considering the misuse of police power of arrest, it has been opined (1994 SCC 260) no arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another… No arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person’s complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter.” In this same case, the apex court also voiced its concern regarding complaints of human rights violations before and after the arrests:

“The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violations of human rights because of indiscriminate arrests. How are we to strike a balance between the two? A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first — the criminal or society, the law violator or the law abider…”

This judgment was followed by several guidelines laid down by the judiciary. In DK Basu v State of WB, after referring to the authorities in the Joginder Kumar case, Nilabati Behera v State of Orissa, and State of MP v Shyamsunder Trivedi, the Supreme Court laid down certain rules to be followed in cases of arrest and detention till legal provisions are made in that behalf as preventive measures.

The Supreme Court noted that Fernandes, the amicus curiae, in a tabular chart has pointed that none of the requirements had been complied with: “Various reasons have been ascribed for the same. On a scrutiny of enquiry report and the factual assertions made, it is limpid that some of the guidelines have been violated. It is strenuously urged by Mr Fernandes that Section 66-A(b) of the Information Technology Act, 2000 provides maximum sentence of three years and Section 420 CrPC stipulates sentence of seven years and, therefore, it was absolutely imperative on the part of the arresting authority to comply with the procedure postulated in Section 41-A of the Code of Criminal Procedure. The Court in Arnesh Kumar v State of Bihar, while dwelling upon the concept of arrest, was compelled to observe:

“’Arrest brings humiliation, curtails freedom and casts scars forever. Lawmakers know it so also the police. There is a battle between the lawmakers and the police and it seems that the police has not learnt its lesson: the lesson implicit and embodied in CrPC. It has not come out of its colonial image despite six decades of Independence, it is largely considered as a tool of harassment, oppression and surely not considered a friend of public. The need for caution in exercising the drastic power of arrest has been emphasized time and again by the courts but has not yielded desired result. Power to arrest greatly contributes to its arrogance so also the failure of the magistracy to check it. Not only this, the power of arrest is one of the lucrative sources of police corruption. The attitude to arrest first and then proceed with the rest is despicable. It has become a handy tool to the police officers who lack sensitivity or act with oblique motive.’

“Thereafter, the Court referred to Section 41 CrPC and analyzing the said provision, opined that a person accused of an offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years with or without fine, cannot be arrested by the police officer only on his satisfaction that such person had committed the offence. It has been further held that a (2014 8 SCC 273) police officer before arrest, in such cases has to be further satisfied that such arrest is necessary to prevent such person from committing any further offence; or for proper investigation of the case; or to prevent the accused from causing the evidence of the offence to disappear; or tampering with such evidence in any manner; or to prevent such person from making any inducement, threat or promise to a witness so as to dissuade him from disclosing such facts to the court or the police officer; or unless such accused person is arrested, his presence in the court whenever required cannot be ensured. These are the conclusions, which one may reach based on facts. Eventually, the Court was compelled to state: ‘In pith and core, the police officer before arrest must put a question to himself, why arrest? Is it really required? What purpose it will serve? What object it will achieve? It is only after these questions are addressed and one or the other conditions as enumerated above is satisfied, the power of arrest needs to be exercised. In fine, before arrest first the police officers should have reason to believe on the basis of information and material that the accused has committed the offence. Apart from this, the police officer has to be satisfied further that the arrest is necessary for one or the more purposes envisaged by sub-clauses (a) to (e) of clause (1) of Section 41 CrPC.’”

In the case at hand, the judges said, there has been violation of Article 21 and the petitioners were compelled to face humiliation. “They have been treated with an attitude of insensibility. Not only there are violation of guidelines issued in the case of DK Basu (supra), there are also flagrant violation of mandate of law enshrined under Section 41 and Section 41-A of CrPC. The investigating officers in no circumstances can flout the law with brazen proclivity. In such a situation, the public law remedy which has been postulated in Nilawati Behra (supra), Sube Singh v State of Haryana, Hardeep Singh v State of MP10, 9 (2006) 3 SCC 178 10 (2012) 1 SCC 748 24 comes into play. The constitutional courts taking note of suffering and humiliation are entitled to grant compensation. That has been regarded as a redeeming feature. In the case at hand, taking into consideration the totality of facts and circumstances, we think it appropriate to grant a sum of Rs 5,00,000/- (rupees five lakhs only) towards compensation to each of the petitioners to be paid by the State of MP within three months hence. It will be open to the State to proceed against the erring officials, if so advised. The controversy does not end here. Mr Fernandes, learned Amicus Curiae would urge that it was a case for discharge but the trial court failed to appreciate the factual matrix in proper perspective. As the matter remained pending in this court for some time, and we had dealt with other aspects, we thought it apt to hear the learned counsel for the aspect of continuance of the criminal prosecution. We have narrated the facts at the beginning. The learned magistrate by order dated 19.2.2015 has found existence of prima facie case for the offences punishable under Section 420 IPC and Section 66-A(b) of I.T. Act, 2000 25 read with Section 34 IPC. It is submitted by Mr Fernandes that Section 66-A of the IT Act, 2000 is not applicable. The submission need not detain us any further, for Section 66-A of the IT Act, 2000 has been struck down in its entirety being violative of Article 19(1)(a) and not saved under Article 19(2) in Shreya Singhal v Union of India. The only offence, therefore, that remains is Section 420 IPC. The learned Magistrate has recorded a finding that there has been no impersonation. However, he has opined that there are some material to show that the petitioners had intention to cheat. On a perusal of the FIR, it is clear to us that the dispute is purely of a civil nature, but a maladroit effort has been made to give it a criminal colour. In Devendra v State of UP it has been held thus: ‘it is now well settled that the High Court ordinarily would exercise its jurisdiction under Section 482 of the Code of Criminal Procedure if the allegations made in the first information report, even if given face value and taken to be correct in their entirety, do not make out any offence. When the allegations made in the first information report or the evidences collected during investigation do not satisfy the ingredients of an offence, the superior courts would not encourage harassment of a person in a criminal court for nothing.’

Ïn the present case, it can be stated with certitude that no ingredient of Section 420 IPC is remotely attracted. Even if it is a wrong, the complainant has to take recourse to civil action. The case in hand does not fall in the categories where cognizance of the offence can be taken by the court and the accused can be asked to face trial. In our considered opinion, the entire case projects a civil dispute and nothing else. Therefore, invoking the principle laid down in State of Haryana v Bhajan Lal, we quash the proceedings initiated at the instance of the 8th respondent and set aside the order negativing the prayer for discharge of the accused persons. The prosecution initiated against the petitioners stands quashed.”